Bear, initially sighted in customs waters and stopped in inland waters. The trawler was laden with more than 19,000 pounds of marijuana.

Writing for the three-judge panel, Circuit Judge Bryan Simpson ruled in his opinion dated July 3, 1980, that the panel was bound by the Fifth Circuit's recent decision in United States v. Whitaker, 592 F.2d 826 (5th Cir. 1979), reh'g en banc denied, 601 F.2d 586, cert. denied, 444 U.S. 950. Under Whitaker, United States Customs officers have authority (pursuant to 19 U.S.C. 1581(a)) to stop and board vessels for document checks, when initially sighted in customs waters, even in the absence of a modicum of suspicion or probable cause. Since the Customs officers had sighted the trawler initially in customs waters, they were authorized to stop and board it. The presence of marijuana in plain view and the smell of marijuana in the wheelhouse, the Court said, "gave rise to probable cause which, combined with the exigent circumstances peculiar to a moving vessel, justified the subsequent warrantless search." The Court declined to consider whether a standard of suspicion less than probable cause would also justify a search under the circumstances of the case, or to decide whether a warrant would be required, if exigent circumstances did not exist.

The Court reversed the conviction of one of the three appellants as to two counts, conspiracy and importation, for insufficiency of evidence, affirming his conviction for possession of marijuana with intent to distribute. It affirmed the district court's judgment in all other respects.

The validity of warrantless searches of vessels in inland waters of the United States continued to be challenged under the Fourth Amendment beyond 1980.

United States v. Guillen-Linares, 636 F.2d 78 (5th Cir. 1981), involved a 1978 warrantless boarding and search of an American shrimper, the Miss Port Canaveral, while it had been anchored in the inland waters of upper Tampa Bay. At the request of the United States Customs Service, the United States Coast Guard undertook surveillance of, and then boarded, the vessel. A search for its main beam identification number led to the discovery of marijuana bales below deck. Appealing their subsequent convictions of violations of various statutes relating to possession of marijuana with intent to distribute, the crew members alleged, inter alia, that the district court had erroneously failed to suppress the seized marijuana on Fourth Amendment grounds.

The district court had upheld the Coast Guard's actions under its boarding authority in 14 U.S.C. 89(a), even though Judge William Terrell Hodges acknowledged that those actions had been undertaken at the "suggestion or direction" of the Customs Service. He had found no evidence, however, that the Service had elaborated its grounds for suspecting the shrimper, other than that the surveillance "involved a case they had been working on for some time." 636 F.2d 78, 79, 80. The district court also found that the Coast Guard's surveillance had revealed nothing inherently suspicious about the vessel's configuration or presence.

On Jan. 15, 1981, a three-judge panel of the United States Court of Appeals for the Fifth Circuit remanded the case to the district court for findings as to the capacity in which the Coast Guard officers had boarded the Miss Port Canaveral: whether they had acted in their capacity as Coast Guardsmen under 14 U.S.C. 89(a), as they alleged;

or whether they had acted solely as agents of the Customs Service, pursuant to 14 U.S.C. 89(b). Circuit Judge Gerald B. Tjoflat suggested that if they had boarded the shrimper in the latter capacity, they might be subject to the standards (and potentially applicable constitutional inhibitions), which the Fifth Circuit considered to be required by the Customs Service boarding statute, 19 U.S.C. 1581(a).

Following the findings on remand, the Fifth Circuit in United States v. GuillenLinares, 643 F.2d 1054 (5th Cir. 1981), reversed the district court's earlier decision that the boarding and search had been valid. Ruling that the Customs Service had, in effect, boarded the vessel, Judge Tjoflat determined the legality of the boarding "pursuant to the constitutional standards this circuit has engrafted onto the broad authorization of [19 U.S.C.] 1581(a).” 643 F.2d at 1056. He referred, inter alia, to the Court's holding in United States v. D'Antignac, 628 F.2d 428 (5th Cir. 1980), cert. denied, 450 U.S. 967 (1981), that the constitutionality of a section 1581(a) boarding in inland waters turned upon one of two principles: (1) whether it was a border search; or (2) whether it was a limited investigatory stop, based upon reasonable suspicion of violation of a law. Since it was clear from the record, the Court said, that the boarding had not constituted a border search, the issue was whether the seizure was reasonable under the Fourth Amendment in the absence of any "articulated facts or circumstances" that might have given rise to a reasonable suspicion of illicit activity. 643 F.2d at 1056. Holding that it was not reasonable, Judge Tjoflat reversed the district court's denial of the appellants' motion to suppress.

Later in 1981, another Fifth Circuit panel, in United States v. Villamonte-Marquez, 652 F.2d 481 (5th Cir. 1981), reversed the defendants' convictions in the district court for the Western District of Louisiana for having violated prohibitions against the import and possession of marijuana, because in the panel's view the underlying Customs Patrol boarding in 1980 had been undertaken without reasonable suspicion that a law had been violated.

The vessel, the Henry Morgan II, a diesel-powered sailboat, had been anchored in the Calcasieu River (Lake Charles) Ship Channel about 18 miles inland from the Louisiana coast. The boarding had followed upon information that two marijuana loads on two separate vessels were in the area to await offloading and that their operators spoke a foreign language. (An ensuing Customs Patrol check of docks and marinas and a water search conducted with officers of the Louisiana Department of Wildlife and Fisheries had brought forth nothing.) Resuming surveillance from a Louisiana State Police water patrol boat, the Customs Patrol officer observed the sailboat rocking violently in the "huge wake" of a passing freighter. The apparent inability of a sailboat occupant to understand a welfare inquiry in English and the fact that the boat showed "Basilea" as its homeport led the Customs Patrol officer and a Louisiana State Police narcotics investigator to board the sailboat for a documentation check. The document presented was apparently a request to change the registration of a ship from Swiss registry to French registry.

The odor of burning marijuana was detected, and through an open door hatch burlap-wrapped bales were observed in plain view, one of which, on being opened, disclosed marijuana. A total of about 5,800 pounds was found in the forward, mid and aft cabins and under seats in the open area of the vessel.

Writing for the panel on Aug. 3, 1981, Senior Judge Byron G. Skelton, Senior Judge of the Court of Claims, sitting by designation, ruled that the general information about two loads of marijuana in the vicinity did not authorize the government agents to stop and question the occupants of all boats not recognized as ordinarily present in those waters and that the suspicious activities of another boat and its operator did not justify boarding the sailboat, where no possible connection between the two had been made prior to the boarding. Rejecting other "articulable facts" relied upon by the United States and by the district court, the panel ruled that a reasonable suspicion of law violation could not be rationally inferred from them and that they supported nothing

more than a "generalized suspicion and speculation in the minds of the officers." 652 F.2d 481, 488.

The United States applied for certiorari, which the Supreme Court granted in 1982, because, the Court afterwards said, in United States v. Villamonte-Marquez, 462 U.S. 579, at 584, "of a conflict among the Circuits and the importance of the question presented as it affects the enforcement of Customs laws." The Supreme Court reversed the Fifth Circuit on June 17, 1983, holding that the boarding of the Henry Morgan II had not violated the Fourth Amendment. Justice William H. Rehnquist, writing for the Court, agreed with the United States Government that the lineal ancestor of the Customs boarding statute, enacted by the same (First) Congress that promulgated the Bill of Rights (including the Fourth Amendment), “clearly authorized the suspicionless boarding of vessels." This gave the Customs boarding statute, the Court said, an "impressive historical pedigree", and reflected the view of the First Congress that such boardings were not contrary to the Fourth Amendment. 440 U.S. at 592. Discussing the Court's ruling in other cases that involved stops of vehicular traffic for various purposes, Justice Rehnquist pointed to the applicability of the Fourth Amendment's "overarching" principle of "reasonableness" to the instant case. Thus, the "important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area" were sufficient to require a different result when determining the permissibility of a particular law enforcement practice. Ibid. at 588. Mentioning some of the documentary requirements for vessels, both American and foreign, he then summarized the various public interests they served. These included "prevention of entry into the United States of controlled substances, illegal aliens, prohibited medicines, adulterated foods, dangerous chemicals, prohibited agricultural products, diseased or prohibited animals, and illegal weapons and explosives," interests which were "of course, most substantial in areas such as the ship channel in this case, which connects the open sea with a Customs Port of Entry." While the need to make document checks was great, the Court said, the resultant intrusion on an individual's Fourth Amendment interests was limited and modest. 462 U.S. at 591-592.

In several instances of receipt of letters rogatory from foreign embassies at Washington, requesting judicial assistance in enforcing foreign judgments, the Department of State had to explain that foreign judgments, decrees, or orders could not be so enforced in the United States, but that return of the request did not imply the unavailability of a judicial remedy in the United States. It simply meant that the remedy did not lie through the medium of letters rogatory.

Referring to the Secretary of State's circular note of February 3, 1976, defining the nature and limits of judicial assistance, the Department pointed out that under United States laws, an individual seeking to enforce a foreign judgment, decree, or order in the United States must file suit before a competent court, which would then determine whether to give effect to the foreign judgment.

Examples of the Department's replies to requests for judicial assistance in enforcing foreign judgments may be found in a note from the Department of State to the Embassy of Spain, dated July 2, 1980, Dept. of State File No. P80 0099-1030, in response to the Embassy's note dated June 18, 1980, ibid., No. P80 0099-1032, and in a note to the Embassy of Turkey, dated Nov. 4, 1980, ibid., No. P80 0146-1046, in response to the Embassy's note dated June 20, 1980, ibid., No. P80 0090-0256.

For the text of the Secretary of State's circular note of Feb. 3, 1976, see the 1976 Digest, pp. 306-311, and Dept. of State File No. P76 0014-1925.

In a note to another foreign Embassy, dated December 10, 1980, the Department of State directed the Embassy's attention to an outstanding account payable for expenses incurred in obtaining witness testimony in the United States for use in a proceeding in its country.

Referring to the Secretary of State's circular note of February 3, 1976, ante, the Department pointed out that requests for obtaining evidence must be accompanied by an Embassy guarantee of payment of incidental costs. Although testimony was frequently obtained without incurring costs, charges were usually made for stenographic expenses, and witnesses were entitled to certain witness' fees, which from time to time they requested. These costs must be borne initially by the Embassies, the Department pointed out, in order for American judicial proceedings to begin. In regard to the account in question, overdue since 1977, the Department added:

The consequent disaffection of private court reporting firms to whom the Embassy . . . is indebted and of the U.S. Attorneys who depend upon the good offices of those organizations has prompted the Department to reconsider extending its assistance to the Embassy in future judicial assistance cases.

Absent payment by the Embassy of expenses due in the abovecited case and a guarantee of payment in all future cases, the Department can no longer entertain letters rogatory requesting obtention of testimony in the United States.

The Department regrets the necessity of this action and looks forward to renewed cooperation with the Embassy in future judicial services cases.

Dept. of State File No. P80 0162-1815.

Factual Evidence in Private Litigation

Limitations Upon Department of State Role

In a note of June 10, 1980, the Turkish Embassy requested assistance from the Department of State in connection with a child custody proceeding in a Virginia State court. The Court had reportedly ruled that, because there was martial law in certain Turkish provinces, Turkey was not a safe place of residence for the children. The Embassy suggested that it was not for the Court to "pass judgment about conditions in Turkey about which authoritative information is

not in its possession;" rather, it was "the responsibility of the executive to make a policy decision about the visit and residence of U.S. citizens in foreign countries and [to] inform the judicial and legislative bodies."

The Department of State declined the Embassy's request that it inform the Court "officially" of the position of the U.S. Government in this regard, saying in a note dated June 11:

The Department regrets that it is not legally or practically possible to provide the assistance requested by the Embassy in this matter. It is and has long been the firm policy of this Department not to take positions concerning or to participate in litigation between private parties in the courts of the United States, except to the extent that applicable laws may so require, or to the extent that the interests of the United States may be affected by the litigation. In this connection, counsel for one of the parties was informed that the Department would seek to comply with a lawful subpoena or other compulsory process requiring the appearance of one of its officers as a witness in this proceeding, but that such witnesses could not be provided voluntarily.

This practice must be followed in order to avoid prejudice to the rights of private parties, and to avoid inappropriate interference with the independence and integrity of the judicial process.

Moreover, as a matter of law the Department cannot legally direct the United States courts to make any particular findings of fact concerning factual matters such as living conditions in foreign countries, and it would be highly improper for the Department to attempt to do so. United States courts have no legal obligation to give deference to the views of the Executive Branch concerning such matters.

The Department regrets that it cannot provide the particular assistance requested. The Department would of course be prepared to confirm in writing that it has not taken any action to advise or recommend that American citizens refrain from travel in Turkey.

Dept. of State File No. P80 0086-1232, in reply to ibid., No. P80 0081-1607.

Recognition of Foreign Judgments and Decrees Foreign Money Judgments: Comity, Res Judicata, and Collateral Estoppel

Hunt v. BP Exploration Company (Libya) Ltd., 492 F.Supp. 885 (N.D. Tex. 1980), arose out of a 1960 agreement between Hunt, an American citizen, and British Petroleum Exploration Company (BP), for development of an oil field within a concession granted to Hunt by the Libyan Government in 1958.

The letter agreement, accompanied by an operating agreement, a proposed form of assignment, and a specification of accounting procedures, provided for Hunt to convey to BP a one-half interest in the concession plus a production payment. In return, BP was to make